Walton v Gardiner

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. Walton v Gardiner [1993] HCA 77

1993, April 29 Mason C.J., Deane and Dawson JJ.

These three appeals were heard together. They arise out of the tragic, and now notorious, occurrences at a Sydney psychiatric hospital known as the Chelmsford Private Hospital ("Chelmsford" or "the Hospital") and give rise to common questions. Each appeal is from the judgment of the New South Wales Court of Appeal [1] (Gleeson C.J. and Kirby P., Mahoney J.A. dissenting) staying disciplinary proceedings, against the relevant respondent, in the Medical Tribunal established by s. 32M of the Medical Practitioners Act 1938 NSW ("the Act"). In each case, the proceedings in the Medical Tribunal ("the Tribunal") had been instituted in 1991 by the referral of complaints made by the present appellant, Ms. Walton, as a delegate of the Secretary of the New South Wales Department of Health. It is convenient to use the phrase "the Department" to refer indifferently to Ms. Walton, to the present New South Wales Department of Health and to its predecessors.

In the disciplinary proceedings, the respondents are charged with professional misconduct under s. 27(1)(a) of the Act by reason of occurrences at the Hospital during periods respectively commencing in 1973, 1970 and 1972 and ending in 1978. Two of the respondents, Dr. Herron and Dr. Gill, are registered medical practitioners. The other respondent, Dr. Gardiner, was a registered medical practitioner at the time of the alleged misconduct. Putting to one side some complaints in relation to financial matters in respect of which the proceedings were not stayed and which can be disregarded for the purposes of this appeal, the substance of what is alleged against each respondent in the Tribunal proceedings is that, during the relevant period, he administered to a large number of patients in the Hospital a form of psychiatric treatment known as "deep sleep therapy" together with associated electro-convulsive therapy. It is alleged that deep sleep therapy "involved significant risks", was "unjustifiably dangerous" and was of "no medical worth". The associated electro-convulsive therapy is alleged to have been "unjustifiably dangerous". There is no suggestion that any of the respondents has administered deep sleep therapy, or been guilty of any professional misconduct, since 1979.

During the period between 1970 and 1978, the leading exponent in New South Wales of deep sleep therapy was a Dr. Harry Bailey. He was the medical practitioner principally involved in its administration at the Hospital. The three respondents were, in one way or another, all associates of Dr. Bailey. Whatever may have been the position prior to 1967, the effect of subsequent allegations and occurrences, including deaths, was that the treatment of psychiatric patients at the Hospital under the regime established by Dr. Bailey had been completely discredited by 1985 when Dr. Bailey, facing criminal charges, took his own life. The long history of those allegations and occurrences is set out in some detail in the reported judgment of McHugh J.A. in an earlier and related case - Herron v McGregor [2] - in the Court of Appeal. It suffices, for present purposes, to identify certain major events in that history. We do so, in the following four paragraphs, in words largely taken from the judgment of Gleeson C.J. in the Court of Appeal in the present case.

1. (1986) 6 NSWL.R. 246, at pp. 248-250, 255-256, 258-259, 260-265, 267-271.

Even before 1978, there had been considerable concern in various quarters, including the Department, about the treatment of psychiatric patients at the Hospital. The matter became of political interest. In October 1978, the Attorney-General wrote to the Minister for Health raising concerns about the treatment of patients at Chelmsford. Officers of the Department visited the Hospital. In November 1978, the Minister for Health informed the Attorney-General that a full investigation would be carried out in due course. In October 1979, in response to a letter from a branch of a political party calling for a full inquiry into practices at the Hospital, the Minister for Health advised that the Department was aware of the problems associated with psychiatric care and that the Department, the Attorney-General's Department and the police had been involved in matters pertaining to the Hospital.

A patient named Ms. Podio died, and a coronial inquiry was held. In March 1982, the Coroner found prima facie cases of negligence against Dr. Herron, Dr. Bailey and Dr. Gardiner and referred the matter to the Attorney-General. In the meantime, there had been civil litigation instituted against Dr. Herron by a former patient, a Mr. Hart. That action was commenced in 1976, and, after a hearing lasting sixty-four days, concluded in 1980 in a verdict in favour of Mr. Hart. The proceedings attracted substantial publicity.

In 1982, a member of the public, Ms. Eastgate, made two complaints under the Act against Dr. Herron. One of those complaints related to the treatment of Mr. Hart in 1973; the other related to the treatment of Ms. Podio in 1977. In 1983, Mr. Hart also made a complaint against Dr. Herron under the Act. The complaint related to the treatment of Mr. Hart in 1973. Then, in 1985 and 1986, the Assistant Secretary of the Department, Mr. McGregor, laid a number of complaints under the Act. Three of those complaints were against Dr. Herron. They related to the treatment of three patients: Mr. Hart in 1973, a Ms. Francis in 1976 and Ms. Podio in 1977. Two complaints were against Dr. Gill. They related to the treatment of Ms. Podio in 1977 and a Mr. Adams in 1977. A final complaint was against Dr. Gardiner. It related to the treatment of Ms. Podio.

All of those earlier complaints were directed to the treatment of particular patients. However, they were accompanied by wider allegations about the inappropriateness of the kind of treatment being given at the Hospital, about the use of deep sleep therapy and electro-convulsive therapy in conjunction with it, and about the circumstances accompanying such treatment at Chelmsford. In March 1986, after an investigating committee [3] had found prima facie cases of misconduct, the complaints were referred to the Tribunal. In what follows, we shall refer to the proceedings before the Tribunal in relation to those complaints as "the earlier proceedings" and to the proceedings involved in the present case, namely those instituted in the Tribunal by the Department's 1991 complaints, as "the current proceedings".

1. Set up under the now repealed s. 27A of the Act.

In 1986, each of Dr. Herron and Dr. Gill applied to the New South Wales Court of Appeal for an order staying the earlier proceedings on the complaints against him. The Court of Appeal ordered that there be a permanent stay of those proceedings. Mr. McGregor (i.e. the Department) was ordered to pay Dr. Herron's and Dr. Gill's costs. The ground upon which the Court of Appeal ordered a stay was that, by reason of the prolonged delay after relevant facts had become known, the institution and continuation of the proceedings were an abuse of the right to lodge a complaint [4] . The judgment of McHugh J.A., with which Street C.J. and Priestley J.A. agreed, makes plain that the Court of Appeal's decision was, to a significant extent, based upon views about the "right to a speedy trial" and "presumptive prejudice" which require revision or modification in the light of the subsequent decision of this Court in Jago v District Court (NSW) [5] . Nonetheless, Herron v McGregor is of importance for present purposes for at least two reasons. First, the fact that the order staying the earlier proceedings in the Tribunal against Dr. Herron and Dr. Gill had been made in 1986 was, of itself, seen by all members of the Court of Appeal in the present case as an important consideration supporting the making of an order staying the current proceedings. Second, the judgment of McHugh J.A. contains a number of findings of fact about the delay in instituting the earlier proceedings and about actual prejudice (to Dr. Herron and Dr. Gill) caused by that delay. They include findings that the Department's delay in lodging complaints against Dr. Herron and Dr. Gill was "appalling" and "inexcusable" and that, for a number of identified reasons, a consequence of that delay was that Dr. Herron and Dr. Gill would be significantly prejudiced in defending the earlier proceedings against them in the Tribunal.

1. See (1986) 6 NSWL.R., at pp. 258, 260, 266, 267, 268, 269, 271. 2. (1989) 168 C.L.R. 23.

After the Court of Appeal's decision in Herron v McGregor , the Tribunal itself stayed the earlier proceedings against Dr. Gardiner. It has not been suggested that Dr. Gardiner's case for a stay of the present proceedings is a weaker one than that of Dr. Herron or Dr. Gill by reason of the fact that the earlier proceedings against him were stayed by the Tribunal, and not by the Court of Appeal. Indeed, Dr. Gardiner's case for a stay of the present proceedings is a stronger one than that of Dr. Herron and Dr. Gill in at least one respect. That is that the material before the Court discloses that, in the years which have passed since the earlier proceedings were permanently stayed, Dr. Gardiner, who is now more than seventy years old, has ceased to practice medicine and has become a seriously ill man.

The 1986 orders staying the earlier proceedings did not quell growing public pressure for a full investigation of past occurrences at the Hospital. The New South Wales Government established a Royal Commission into Deep Sleep Therapy, commonly known as the "Chelmsford Royal Commission". The Royal Commissioner heard evidence over two hundred and eighty-eight days between October 1988 and July 1990 and subsequently delivered a lengthy report which made some disturbing findings bearing upon the propriety of the conduct of the medical practitioners, including the respondents, who had been involved in the administration of deep sleep therapy at the Hospital. The gravity of those findings can be effectively demonstrated by setting out two extracts from the Royal Commissioner's Report. The first extract was quoted by Gleeson C.J. [6] in the Court of Appeal. It reads:

Before the Royal Commission, a large number of medical experts were consulted both for the coroner and on behalf of the doctors involved for the purpose of the coronial proceedings into the deaths of Carter, Podio, Francis and Adams. There was opinion material available in relation to a number of past civil claims in the Supreme Court and legal opinion bearing on that expert medical opinion.

Out of all this material no support whatsoever can be gained for the use of deep sleep therapy and with few exceptions, every comment relating to it and its method of administration was condemnatory. The opinion expressed was that deep sleep therapy was an extremely dangerous treatment and was carried out with inadequate facilities, staff and equipment to deal with the risks. It was therapeutically ineffective.

The other extract from the Report was quoted by Mahoney J.A. [7] . It contains some of the Royal Commissioner's findings about Dr. Herron's and Dr. Gardiner's respective roles in, and the consequences of, the administration of that "extremely dangerous" and "therapeutically ineffective" (see above) treatment at the Hospital: Dr. Herron acted in the role of Dr. Bailey's registrar at Chelmsford during the 1960s and 1970s although in the 1960s his employment with the public service prohibited such activity. Dr. Herron said he saw the treatment as attractive and the Chelmsford programme as more dignified than public hospital treatment of which he was very critical.

During the 1960s Dr. Bailey visited the hospital regularly and usually daily but the attendances became erratic and a pattern of visits after midnight became the norm. In the 1970s his visits reduced to one a week.

In 1972 Dr. Ian Donald Russell Gardiner, who was employed by the Community Health Centre at North Ryde, started to help Dr. Herron. E.C.T. was routinely given daily except on Sunday. As Dr. Bailey withdrew from regular attendance the load on Dr. Herron of the daily administration of E.C.T. became greater and Dr. Gardiner was engaged to administer the E.C.T. There was a difference in evidence about the responsibility of Dr. Herron and Dr. Gardiner for the medical care of patients, other than the administration of E.C.T. Dr. Herron saw his role as something more and from time to time entered treatment directions in Dr. Bailey's book. Dr. Gardiner claimed to know little about it and, while aware of its hazards, never believed in its benefits. The benefits which occurred came from E.C.T. The details of the doctors are in volume 2.

D.S.T. was a very dangerous procedure. The details of this are set out in volume 3. It was used by Dr. Bailey for all manner of psychiatric problems including depression, schizophrenia, anorexia and drug and alcohol addiction.

A careful examination of the records shows that 24 D.S.T. patients died because of D.S.T. between 1963 and 1979 when the treatment ended. Because there were a number of aged patients at Chelmsford who died of natural causes, the D.S.T. deaths in the early years were not so readily detectable as being related to D.S.T.

The first patients died in 1964. In the second half of 1964, five patients died during D.S.T. and possibly their deaths were also associated with a golden staph epidemic in Sydney. D.S.T. made them more susceptible to this infection. Patients died thereafter at the average of one or two a year. During Matron Robson's time, December 1972 to 1976, nine patients died and during Matron Smith's period in 1976, no patients died.

Most D.S.T. patients who died were aged in their 20s, 30s and 40s. Dr. Bailey routinely provided death certificates for these deaths which were often false and avoided any coroner's inquest even though if the true facts were known an inquest should have been held. Of the 24 deaths which occurred, Dr. Bailey signed 17 certificates which were probably false.

A large number of patients were treated for complications, these being mainly infections, pneumonia and deep vein thrombosis. The unconscious condition and immobile position contributed to these complications. There was incontinence of urine and faeces and impaction and retention. There were restraints used to prevent falling from the bed, fractures and falls, vomiting, skin breakdown and metabolism imbalance. At the end of the treatment there were gross visual distortions and hallucinations and severe weakness.

In 1970 a complaint was made about Dr. Herron's involvement with Chelmsford to Health and the Public Service Board. (Throughout this report the relevant department has been called Health to avoid confusion.) The complaint was upheld and as a result Dr. Herron was given a warning. Official permission was subsequently given for him to engage in private practice for three hours a week at Chelmsford. Dr. Herron then began to admit his own patients to Chelmsford and from then until 1979 he gave D.S.T. treatment to a number of patients, although not to the extent that Dr. Bailey carried it out.

1. (1991) 25 NSWL.R., at pp. 199-200. 2. ibid., at pp. 219-220.

After the Royal Commissioner's Report had been delivered and studied, Ms. Walton, acting on behalf of the Department, initiated the current proceedings against the respondents in the Tribunal.

Analysis of the judgments of the members of the Court of Appeal in the present case discloses general agreement between their Honours about the applicable legal principles and the nature of the ultimate question which arose for their determination. The starting point for each of their Honours was an acceptance of the jurisdiction of the Court of Appeal, in the exercise of its general supervisory powers under s. 23 of the Supreme Court Act 1970 NSW, to intervene in an appropriate and exceptional case to stay proceedings in the Tribunal. The existence of that original jurisdiction was not challenged by any of the parties in the Court of Appeal. It was said by Mahoney J.A. to be "well-established" [8] .

1. (1991) 25 NSWL.R., at p. 209 and see, generally, Herron v McGregor (1986), 6 NSWL.R., at pp. 250-252; Cooke v Purcell (1988), 14 NSWL.R. 51, at pp. 60, 63-67.

The members of the Court of Appeal all recognized the close relationship between the Department's complaints in the earlier proceedings which had been stayed by, or as a consequence of, the orders made in Herron v McGregor and the Department's complaints in the current proceedings. The earlier complaints had focused upon the treatment of a few named individuals whereas the new complaints were, in terms, directed more to general allegations of malpractice. Indeed, as Gleeson C.J. observed [9] , it seems that, in the framing of the new complaints, a conscious effort was made to distinguish them, as far as that could possibly be done, from the previous complaints. Nonetheless, as his Honour pointed out [10] :

an examination of the particulars accompanying the complaints shows that there was criticism of a system that was in operation at Chelmsford, and not merely a particular form of treatment limited to a small number of patients. In disciplinary proceedings against professional persons it is common for allegations of malpractice to be pursued by reference to the facts concerning the way in which the professional person in question has dealt with certain named patients or clients. That is usually both a fairer and a more efficient means of dealing with such allegations. It will sometimes be the case, however, that the evidentiary background will show a general course of practice of which the cases in question are particular instances.

In summary, the new complaints are not the very complaints that were previously stayed, but they arise out of the same pattern of professional conduct as gave rise to the earlier complaints, and there is a substantial degree of overlapping between the issues to which the new complaints give rise and the issues that would have arisen under the previous complaints.

1. (1991) 25 NSWL.R., at p. 196. 2. ibid., at pp. 196-197.

No attempt has been made in the current proceedings to reopen or dispute the Court of Appeal's findings in Herron v McGregor that the delay of the Department in instituting the earlier proceedings was "appalling" and "inexcusable" and that that delay had caused actual prejudice to Dr. Herron and Dr. Gill in defending the earlier proceedings against them. The members of the Court of Appeal in the present case proceeded on the basis of those findings. Their Honours all recognized that the delay of the Department had been aggravated by the years that had expired since 1986. They accepted that a consequence of that aggravated delay was that each of the present respondents would inevitably be seriously prejudiced in relation to his defence of the current proceedings against him. Notwithstanding that prejudice, however, their Honours either found [11] or assumed [12] that it would be possible for the Tribunal, by taking appropriate steps during the proceedings, to afford the respondents a fair hearing.

1. (1991) 25 NSWL.R., at p. 200, per Gleeson C.J.; pp. 220-221, per Mahoney J.A. 2. ibid., at pp. 205-206, per Kirby P.

As will be seen, the members of the Court of Appeal resolved the question whether the proceedings in the Tribunal should be permanently stayed by reference to a weighing process in which account was taken of considerations of fairness to the respondents and of more general considerations of public interest. In that weighing process, their Honours all took account of the policy [13] - or notions - of fairness which informs the principle against double jeopardy.

Application for Leave to Amend the Notice of Appeal

In the course of argument before this Court, the appellant sought leave to amend the notice of appeal to raise a challenge to the jurisdiction of the Court of Appeal to intervene to stay proceedings before the Tribunal on the ground that their continuance would be an abuse of the process of the Tribunal. The respondents opposed the grant of such leave to amend. In our view, leave to amend should be refused.

As has been said, there was no challenge in the Court of Appeal to the existence of that court's jurisdiction to stay proceedings in the Tribunal. Nor was there any suggestion of such a challenge either on the application for special leave to appeal to this Court, in the notice of appeal which was subsequently filed or in the appellant's outline of argument. More importantly, there are other circumstances in the present case which weigh very heavily against the grant of leave to amend the notice of appeal to introduce a ground challenging the jurisdiction of the Court of Appeal. We turn to identify them.

In the Court of Appeal in the earlier case of Herron v McGregor , the Department challenged the jurisdiction of that court to stay proceedings in the Tribunal on the ground that such proceedings constituted an abuse of the Tribunal's process. After a detailed consideration of a large number of relevant cases, McHugh J.A., speaking for the Court of Appeal, concluded that the Supreme Court possessed inherent "supervisory jurisdiction", (or "power"), to make such an order [14] . His Honour added [15] :

Moreover, in the case of this Court the matter seems settled by the terms of the Supreme Court Act 1970, s. 23, which provides that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". In Riley McKay Pty. Ltd. v McKay [16] this Court saw s. 23 as one of two bases for the "new" remedy of the Mareva injunction. The jurisdiction conferred by s. 23 is in my opinion wide enough to enable this Court to make orders protecting inferior courts and tribunals against any abuse of their processes. As his Honour's references to decided cases makes plain, McHugh J.A. considered that there was broad correspondence between the circumstances which would constitute abuse of process of the Tribunal and the circumstances which would constitute abuse of process of a superior court. 1. See (1986) 6 NSWL.R., at pp. 250-252. 2. ibid., at p. 252. 3. [1982] 1 NSWL.R. 264.

Thereafter, the Department (through Mr. McGregor) applied to this Court for special leave to appeal from the judgment of the Court of Appeal staying the earlier proceedings in the Tribunal. Perusal of the argument on that application for special leave discloses that the question whether the Court of Appeal possessed jurisdiction to grant a stay of proceedings in the Tribunal on the ground that their continuance would constitute an abuse of the Tribunal's process emerged as a question of some importance. Nonetheless, this Court refused special leave to appeal. The Court's reasons for refusing a grant of special leave were delivered by Gibbs C.J. who said:

the principal question in issue in the present case is not an unimportant one. However, the Court, by majority, sees no reason to doubt the correctness of the conclusion reached by the Court of Appeal that it had jurisdiction to interfere in the present case.

The matters which the court [i.e. the Court of Appeal] should take into account in the exercise of that jurisdiction involve questions of fact and degree which it would not be appropriate, in the circumstance in the present case, for this Court to consider.

The effect of the grant of leave to amend the notice of appeal which the Department now seeks would be effectively to enable the Department to reopen the question of law which was resolved against it, in proceedings between two of the respondents and itself, in the earlier case of Herron v McGregor . Six years have passed since special leave to appeal to this Court was refused on the ground that this Court saw no reason to doubt the correctness of the Court of Appeal's conclusion that it had jurisdiction to stay proceedings in the Tribunal on the ground of abuse of the Tribunal's process. In these circumstances, it seems to us that it would be unjustifiably oppressive of the respondents, and wrong, to grant leave to amend the notice of appeal at this late stage so that the long course of litigation between the Department and the respondents could be taken right back to a reconsideration of the point of jurisdiction which had been raised by, and determined against, the Department at the outset of the earlier case of Herron v McGregor . Nor would it be conducive to the interests of the administration of justice in New South Wales for this Court, having refused leave to appeal in Herron v McGregor , now to grant leave to amend the notice of appeal to allow a challenge to be made to the propriety of a jurisdiction which has, since that case, been left undisturbed by the Legislature and regarded (and exercised) by the Court of Appeal as "well-established" [17] . Accordingly, the application to amend the notice of appeal must be refused and the appeal must be disposed of on the basis that it is now settled that the Court of Appeal's supervisory jurisdiction with respect to "the administration of justice in New South Wales" [18] extends, in the absence of legislative intervention, to the making of an order staying proceedings in the Tribunal on the ground that they constitute an abuse of the Tribunal's process. We turn to consider the other grounds of appeal which have been argued on behalf of the appellant.

1. (1991) 25 NSWL.R., at p. 209. 2. Supreme Court Act 1970 NSW, s. 23.

It was submitted on behalf of the Department that, even if it be accepted that the Court of Appeal possesses supervisory jurisdiction to order a stay of proceedings in the Tribunal on the ground of abuse of process, that jurisdiction is confined to cases where the court is satisfied either that any hearing before the Tribunal would necessarily be unfair or that the proceedings in the Tribunal have been brought for an improper purpose. As has been mentioned, the members of the Court of Appeal either found or assumed that it would be possible for the Tribunal, by taking appropriate steps during the proceedings, to afford the respondents a fair hearing. It is not suggested that the Department instituted the current proceedings in the Tribunal for an improper purpose. In these circumstances, so the Department submits, it was not open to the Court of Appeal to order that the proceedings in the Tribunal be stayed.

None of the members of the Court of Appeal accepted the Department's narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson C.J. [19] and Kirby P. [20] considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney J.A. adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered [21] that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.

1. (1991) 25 NSWL.R., at p. 200. 2. ibid., at pp. 204-205. 3. ibid., at pp. 218, 220-221.

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [22] . Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them [23] . Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings [24] . The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [25] as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

1. See, e.g., Metropolitan Bank v Pooley (1885), 10 App. Cas. 210, at pp. 220-221; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964), 112 C.L.R. 125, at pp. 128-130. 2. See, generally, Voth v Manildra Flour Mills Pty. Ltd. (1990), 171 C.L.R. 538. 3. See, e.g., Reichel v Magrath (1889), 14 App. Cas. 665, at p. 668; Connelly v Director of Public Prosecutions , [1964] A.C. 1254, at pp. 1361-1362. 4. [1982] A.C. 529, at p. 536.

In Jago v District Court (NSW) [26] , at least three of the five members of the Court clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process" [27] . Mason C.J. considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness [27] . His Honour quoted, with approval, the following remarks of Richardson J. of the New Zealand Court of Appeal in Moevao v Department of Labour [28] :

public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice. Deane J. expressed a similar view in his judgment in Jago [29] : The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed. In her judgment in Jago [30] , Gaudron J. stressed that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands." Her Honour added the comment [30] "that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand". Subsequently in her judgment [31] , her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings. 1. (1989) 168 C.L.R. 23. 2. ibid., at p. 28, per Mason C.J. 3. ibid., at p. 28, per Mason C.J. 4. [1980] 1 N.Z.L.R. 464, at p. 481. 5. (1989) 168 C.L.R., at p. 58. 6. ibid., at p. 74. 7. ibid., at p. 74. 8. ibid., at p. 77.

It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v Spautz [32] . When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition [33] .

1. (1992) 174 C.L.R. 509, at pp. 519-520. 2. ibid., at p. 520, see, in particular, the approving reference to the judgment of Richardson J. in Moevao v Department of Labour , [1980] 1 N.Z.L.R. 464, at p. 482.

In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000 [34] , there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds.

1. See Medical Practitioners Act 1938 NSW, s. 32R(1)(g) and (h).

As was pointed out in Jago [35] , the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. As we read their Honours' judgments, the members of the Court of Appeal all utilized such an adapted weighing process in the present case.

1. See, in particular, (1989) 168 C.L.R., at pp. 30-34, per Mason C.J.; pp. 59-61, per Deane J.; p. 72, per Toohey J.; pp. 76-78, per Gaudron J.

It follows that the Department's argument that the Court of Appeal exceeded its jurisdiction to stay proceedings in the Tribunal must be rejected.

The Department also argued that the Court of Appeal was in error in treating the principle against double jeopardy as relevant to the circumstances of the present case. In part, this argument was based on a submission that the Court of Appeal fell into error in failing to appreciate the difference in substance between the complaints involved in the earlier proceedings in the Tribunal and the complaints involved in the current proceedings. That submission was not made good. To the contrary, consideration of the material before the Court confirms the correctness of the conclusions, about the relationship between the two sets of complaints, which are expressed in the extracts from the judgment of Gleeson C.J. which are set out in an earlier part of this judgment. In part, the argument was based on a submission that the principle against double jeopardy was of no relevance to proceedings in the Tribunal. It is to that submission that we now turn.

Each of the members of the Court of Appeal acknowledged [36] that the case did not fall within the strict rule against double jeopardy in that the complaints (or issues) were not precisely the same as those which had been involved in Herron v McGregor , and in that there had been no full hearing on the merits of the earlier proceedings. Nonetheless, their Honours all recognized the significance of the fact that the 1986 order permanently staying the earlier proceedings in the Tribunal had been made. Gleeson C.J. commented [37] that he saw "considerable force" in the submission that:

the features of unfairness and oppression which are involved in cases which fall within the specific rules which have been developed as instances of the principle against double jeopardy, and against which the principle is aimed, are present here also in abundant extent. In 1986, this Court stayed the proceedings on the earlier charges on the ground that their institution and continuation was harsh and oppressive. Then the claimants were involved in a Royal Commission. Ultimately, some five years after the original charges were stayed, they find themselves charged again by the department (whose delay prior to 1986 has been characterized by this Court as "appalling and without justification") [T]hey are thereby subjected to the kind of vexation and oppression by the State which has so often been declared to be repugnant to the law. Kirby P. expressed the view [38] that Black J.'s explanation, in Green v United States [39] , of "the rationale which lies beyond the resistance of courts to various species of double jeopardy" was equally applicable to "the grossly delayed and now repeated attempts to bring" the respondents before the Tribunal to answer charges in relation to the events at the Hospital prior to 1979. Mahoney J.A. said [40] "that the fact of the decision in Herron v McGregor heightens the sense of injustice which may be felt in respect of the present proceeding before the tribunal". He added [40] that the fact of that earlier decision was "a factor properly to be taken into account". 1. (1991) 25 NSWL.R., at p. 200, per Gleeson C.J.; p. 207, per Kirby P.; p. 217, per Mahoney J.A. 2. ibid., at p. 201. 3. ibid., at p. 207. 4. (1957) 355 U.S. 184, at pp. 187-188: "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 5. (1991) 25 NSWL.R., at p. 217. 6. (1991) 25 NSWL.R., at p. 217.

Once it is recognized that the question whether the current proceedings should be permanently stayed falls to be resolved by reference to a weighing process in which account has to be taken of considerations of fairness to the respondents, it is apparent that the members of the Court of Appeal were fully justified in paying regard to the notions of fairness to an accused person which underlie the common law principle against double jeopardy. Notwithstanding the Department's argument to the contrary, the substance of the complaints against the respondents in the current proceedings corresponded, to a very large extent, with the substance of the complaints against them in the proceedings which had been permanently stayed by, or as a consequence of, the orders made in Herron v McGregor in 1986. The earlier jeopardy of loss of the right to practise and of pecuniary penalty to which the respondents had been subjected in the proceedings based on particular allegations involving the use of deep sleep therapy and associated electro-convulsive therapy on particular patients at Chelmsford prior to 1979, were renewed in the proceedings based on more generalized and wider, but essentially similar, complaints. It is true that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints mean that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure. It was, as Mahoney J.A. pointed out [41] "an important factor to be weighed in the balance".

It follows from what has been said above that the Department has failed to identify any error of principle or fact affecting the Court of Appeal's decision that the current proceedings in the Tribunal should be permanently stayed. As has been said, that decision was the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal's process. As the different conclusions reached by Gleeson C.J. and Kirby P. on the one hand and Mahoney J.A. on the other indicate, the comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involved a substantial element of individual judgment. In our view, the conclusion reached by the majority of the Court of Appeal was clearly open in all the circumstances of this quite exceptional case. That being so, and in the absence of identified error of law or fact, it is no part of the function of this Court to repeat that weighing process for the purpose of determining whether it would reach the same conclusion as that reached by the majority of the Court of Appeal [42] . Indeed, no submission to the contrary was advanced on behalf of the Department.

1. See, generally, Norbis v Norbis (1986), 161 C.L.R. 513, at pp. 518-519; Pambula District Hospital v Herriman (1988), 14 NSWL.R. 387, at p. 415.

The appellant, an authorized delegate of the Secretary of the Department of Health of New South Wales, made a complaint against each of the three respondents, who were registered medical practitioners, under s. 28(1)(d) of the Medical Practitioners Act 1938 NSW ("the Act"). That provision authorizes the making of a complaint that a registered medical practitioner "has been guilty of professional misconduct", a term defined by s. 27(1) and (2) of the Act. Presumably the complaints were made in proper form and were referred by the New South Wales Medical Board to the Medical Tribunal constituted under s. 32M of the Act. His Honour Judge Staunton, as Chairperson of the Tribunal [43] , by notices to the respective medical practitioners, informed them of the terms of the complaint received by the Tribunal and of the time when and place where the Tribunal proposed to sit to arrange a date for the hearing of the complaints. However, the Court of Appeal in the Supreme Court of New South Wales ordered that the proceedings before the Tribunal (except in respect of certain financial transactions not presently material) be permanently stayed. The appellant appeals against the making of the orders for permanent stay.

The litigation has a long and unsatisfactory history. It arises out of events which occurred at the Chelmsford Private Hospital ("Chelmsford") in Sydney where a therapy known as deep sleep therapy ("D.S.T.") was administered to patients over a number of years. The respondents, Drs. Herron and Gill, are registered medical practitioners and the respondent Dr. Gardiner was a registered medical practitioner. All were allegedly concerned in the treatment of certain patients at Chelmsford. I take the earlier history of the matter from the judgment of Gleeson C.J. in the present case [44] :

Even before 1978 there was a good deal of concern in various quarters, including the Department of Health, about the treatment of psychiatric patients at Chelmsford. The matter became of political interest. In October 1978, the Attorney-General wrote to the Minister for Health concerning the treatment of patients at Chelmsford, and officers of the Health Commission visited the hospital. Some form of departmental investigation was carried out.

A patient named Ms. Podio died, and a coronial inquiry was held. In March 1982, the coroner found prima facie cases of negligence against Dr. Herron, Dr. Bailey and Dr. Gardiner and referred the matter to the Attorney-General. In the meantime there had been major civil litigation between Dr. Herron and a former patient named Mr. Hart. That action was commenced in 1976, and, after a hearing lasting sixty-four days, there was, in 1980, a verdict in favour of Mr. Hart. The proceedings were surrounded by substantial publicity.

In 1982 a member of the public, Ms. Eastgate, made two complaints under the Act against Dr. Herron, one relating to treatment of Mr. Hart in 1973 and the other relating to treatment of Ms. Podio in 1972. In 1983 Mr. Hart made a complaint against Dr. Herron under the Act. The complaint related to treatment of Mr. Hart in 1973. Then, in 1985 and 1986, the assistant secretary of the Department of Health, Mr. McGregor, laid a number of complaints under the Act. Three of those complaints were against Dr. Herron, and they related to the treatment of three patients, Mr. Hart in 1973, Ms. Francis in 1976 and Ms. Podio in 1977. Two complaints were against Dr. Gill, and they related to the treatment of Ms. Podio in 1977 and Mr. Adams in 1977. One complaint was against Dr. Gardiner, and it related to the treatment of Ms. Podio.

All of the above complaints were related to the treatment of particular patients. However, they were accompanied by wider allegations of the inappropriateness of the kind of treatment being given at Chelmsford, of the use of deep sleep therapy and of electro-convulsive therapy in conjunction with it, and of the circumstances accompanying such treatment at Chelmsford.

1. sub nom. Gill v Walton (1991), 25 NSWL.R. 190, at pp. 194-195.

In 1986, after the Tribunal refused to stay proceedings on the complaints then pending against Drs. Herron and Gill, they applied to the Court of Appeal for an order staying those proceedings. The Court granted a stay: Herron v McGregor [45] . The Tribunal thereafter granted a stay of proceedings against Dr. Gardiner which were founded on the complaint then pending against him. An application for special leave to appeal against the judgment of the Court of Appeal was refused by this Court.

In Herron v McGregor , the Court of Appeal held that jurisdiction to make the stay order was conferred on the Court by s. 23 of the Supreme Court Act 1970 NSW which provides that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". McHugh J.A., with whom Street C.J. and Priestley J.A. agreed, held that the delay in lodging the complaints was so great - the events to which they referred had allegedly occurred in 1973, 1976 and 1977 - and the institution and continuation of the proceedings was so unfair and oppressive that the proceedings were an abuse of the right to lodge a complaint [46] . The Court rejected the view of the Tribunal that there was "an overriding public interest in the inquiry proceeding, even if [the Tribunal] had found that delay may have caused substantial prejudice and unfairness to the applicants" [47] .

1. See (1986) 6 NSWL.R., at p. 258 passim. 2. ibid., at pp. 249, 266-267.

In the years that followed, public disquiet mounted until, on 14 September 1988, a Royal Commission constituted by the Hon. Mr. Acting Justice Slattery A.O. was appointed to inquire into the administration of and the provision of treatment to patients in Chelmsford and related matters. The Commissioner delivered his report on 17 December 1990. The Report, with appendices, was printed in twelve volumes. Thereafter the complaints the subject of the present proceedings were lodged. The notices of those complaints, addressed to the respective medical practitioners by Judge Staunton, were dated 12 or 13 March 1991. The events alleged in the complaints (the "1991 complaints") are said to have occurred between 1973 and 1978 in the case of Dr. Gardiner, between 1970 and 1978 in the case of Dr. Herron and between 1975 and 1978 in the case of Dr. Gill.

The complaints are drawn in similar terms. As an example, the complaint against Dr. Gardiner alleges that he was guilty of professional misconduct in that he:

(i) demonstrated a lack of adequate knowledge, experience, skill, judgment and/or care in the practice of medicine; and/or

(ii) [has] been guilty of improper or unethical conduct relating to the practice of medicine.

The particulars of this complaint are as follows: 1.1 Between 1973 and 1976 you administered a treatment known as "deep sleep therapy", to patients whom you had admitted to Chelmsford Private Hospital and whose names and dates of admission and treatment are set out in the annexed Schedule 1.

1.2 The treatment known as "deep sleep therapy" involved the administration of a standard regime of sedative drugs to the above patients in order to achieve a condition of unconsciousness and the maintenance of that regime for an extended period of time. During their periods of sedation the above patients were given electro-convulsive therapy.

1.3 The administration by you of deep sleep therapy, which involved significant risks, including the risks of cardio-respiratory, cardio-vascular and neurological complications, was unjustifiably dangerous and for which there was no medical worth as a treatment.

1.4 The administration of electro-convulsive therapy by or with your approval to patients while undergoing deep sleep therapy as set out in the annexed Schedule 1 was unjustifiably dangerous.

2.1 Between 1973 and 1978 you administered electro-convulsive therapy to your own patients and patients of Dr. John Tennant Herron undergoing deep sleep therapy at Chelmsford Private Hospital, and whose names and dates of admission and treatment are set out in the annexed Schedule 2. "Deep Sleep Therapy" was as described in Paragraphs 1.2 and 1.3.

2.2 The administration of electro-convulsive therapy by or with your approval to patients as set out in the annexed Schedule 2 was unjustifiably dangerous.

Schedule 1 to this complaint contains the particulars of one patient to whom D.S.T. was administered and five patients to whom D.S.T. and electro-convulsive therapy ("E.C.T.") were administered. Schedule 2 contains particulars of 100 patients to whom D.S.T. and E.C.T. were administered. The complaint against Dr. Herron lists ninety-five of his patients to whom he allegedly administered D.S.T. and E.C.T. The complaint against Dr. Gill lists two of his patients to whom D.S.T. was administered and lists 100 patients who are referred to in a paragraph alleging that, "while exercising a medical supervisory role at Chelmsford Private Hospital, [he] allowed and/or acquiesced in the administration of "deep sleep therapy" to patients of Dr. J. T. Herron and Dr. I. D. R. Gardiner".

In reference to the 1991 complaints, Gleeson C.J. commented as follows [48] :

It seems that, in the framing of the new complaints, a conscious effort has been made to distinguish them, as far as that can possibly be done, from the previous complaints. For example, the particular patients who were the subject of the earlier complaints are not mentioned amongst the patients the subject of the present complaints. Furthermore, in the light of the information that emerged during the Royal Commission, more is now known by the department and others about what actually went on at Chelmsford between 1970 and 1978, and medical opinion concerning the form of treatment there administered has no doubt developed in certain respects. Perhaps what is now known about what occurred at Chelmsford has contributed to that development of opinion. Nevertheless, both the earlier complaints and the present complaints allege that the form of medical treatment in which the claimants, in association with Dr. Bailey, engaged at Chelmsford between 1970 and 1978, and, in particular, in the administration of deep sleep therapy and electro-convulsive therapy in the circumstances which there obtained, including the regime relating to the administration of drugs, and the standard and degree of nursing care and other assistance available, constituted professional misconduct. 1. Gill v Walton (1991), 25 NSWL.R., at p. 196.

The first question: is there jurisdiction to stay Tribunal proceedings?

The stay order made by the Court of Appeal aborted the proceedings pending before the Tribunal on the 1991 complaints. The first question is: what jurisdiction did the Court of Appeal have to stay those proceedings? In the Court of Appeal, the appellant did not contest the existence of the Court's jurisdiction to make a stay order and, until the issue was raised during argument in this Court, the appellant was content to assume that the jurisdiction of the Court of Appeal was not in issue. But it is not possible to determine the legal correctness of the order made by the Court of Appeal without ascertaining the nature of the jurisdiction in exercise of which that order was purportedly made. The nature of that jurisdiction depends, first, upon the jurisdiction and powers which the Tribunal was called upon to exercise and, second, upon the jurisdiction of the Supreme Court to direct or affect the exercise by the Tribunal of its jurisdiction and powers.

The jurisdiction of the Tribunal is referred to by s. 32M of the Act. Section 32M provides in its relevant parts:

(2) The Tribunal shall have and may exercise the jurisdiction and functions conferred or imposed on it by or under this or any other Act.

(a) the Board decides to refer a complaint to the Tribunal or is informed by a Committee or the Secretary of a decision by the Committee or Secretary to refer a complaint or another matter to the Tribunal: or

(c) inform the Chairperson accordingly; and the Board shall:

(d) appoint 3 other persons to sit on the Tribunal for the purpose of conducting the inquiry or of hearing the appeal.

(4) On being informed of a complaint, matter, appeal or application under subsection (3), the Chairperson shall nominate;

to sit on the Tribunal for the purpose of conducting an inquiry into the complaint, matter or application or hearing the appeal.

Section 32O(1) imposes upon the members of the Tribunal a duty to conduct an inquiry into the complaints referred to it. That subsection provides: The members of the Tribunal nominated and appointed under section 32M shall conduct an inquiry into any complaint, matter or application and shall hear any appeal referred to it. Section 32R confers on the Tribunal, if it finds the subject matter of a complaint against a medical practitioner to have been proved, power to impose disciplinary sanctions. Those sanctions include a caution or reprimand, suspension from practice, removal of the practitioner's name from the Register of Medical Practitioners and a fine not exceeding $25,000.

Parliament, alive to the risk that complaints against medical practitioners may be laid frivolously or vexatiously, has provided a sifting procedure before a complaint reaches the Tribunal [49] . The matter of the complaint must be such, in the opinion of the Medical Board or of the Secretary of the Department of Health, to warrant a referral of the complaint to the Tribunal. An opinion formed in the course of deciding to refer a complaint to the Tribunal is not binding on the Tribunal [50] but the formation of the opinion is a condition precedent to the existence of the Tribunal's jurisdiction. The Tribunal consists of a District Court Judge as Chairperson (s. 32N) (who decides questions of law or procedure (s. 32T(1))), two registered medical practitioners and one lay person appointed from a panel nominated by the Minister (s. 32M(5)). The Tribunal is a professional disciplinary body whose disciplinary powers are discretionary and whose membership is drawn from categories of persons qualified to recognize and to dismiss any frivolous, vexatious or unsubstantiated complaint that, despite the filtering process, has been referred to it.

1. See, in particular, ss. 31, 32, 32B(3). 2. See Medical Board (Q.) v Byrne (1958), 100 C.L.R. 582.

In the present case, the attack made by the respondents on the complaints did not in terms deny the effectiveness of the complaints to enliven the power of the Board [51] (or of the Secretary after consultation with the Board [52] ) to refer the complaints to the Tribunal. Nor did the respondents attack the decision of the Board (or of the Secretary) to refer the complaints to the Tribunal. Indeed, the respondents have not in terms impugned the jurisdiction of the Tribunal. Instead, in reliance on s. 23 of the Supreme Court Act, they sought and obtained the order to stay the proceedings before the Tribunal.

Gleeson C.J. conceived the Court of Appeal to have a "supervisory jurisdiction to stay the proceedings in the Medical Tribunal" which his Honour thought the Court should exercise after weighing "in the balance considerations of public interest" [53] . Kirby P., noting that the supervisory jurisdiction of the Court was not disputed [54] , considered whether proceedings before the Tribunal on the appellant's complaints "would now submit the [respondents] to a legal procedure which was unjustifiably oppressive and unfair" [55] . Mahoney J.A. said this [56] :

The power invoked in the present proceeding is the general supervisory power which the Supreme Court of New South Wales has in respect of the justice system of this State. That power, in earlier times, was exercised at least primarily through prerogative writs: it is now exercised in a more general and flexible manner: see Herron v McGregor [57] .

It is not exercisable in respect of the executive arm of government as such but it is not limited to bodies which are of their nature courts. The nature of the bodies to which this power of supervision is applicable was discussed by this Court in New South Wales Bar Association v Muirhead [58] . As I have said, it is not in question in this proceeding but that the power extends to the Medical Tribunal.

1. (1988) 14 NSWL.R. 173, at pp. 184-185, 197, 208-211. His Honour held that, apart from the established grounds on which remedies by way of judicial review are granted, the Court's supervisory jurisdiction might be exercised on the ground of "contravention of natural justice or injustice" - terms which his Honour used "to comprehend the many circumstances in which this Court will intervene for reasons based upon the justice of a particular proceeding" [59] . The supervisory jurisdiction, his Honour held, is exercisable "when the trial of the issue will depart so far from perfect justice that the result is unacceptable" [60] .
   1. Gill v Walton (1991), 25 NSWL.R., at p. 201.
   2. ibid., at p. 204.
   3. ibid., at p. 206.
   4. ibid., at p. 210.
   5. (1986) 6 NSWL.R., at pp. 250-252.
   6. (1988) 14 NSWL.R. 173, at pp. 184-185, 197, 208-211.
   7. Gill v Walton (1991), 25 NSWL.R., at p. 210.
   8. ibid., at p. 211.

Having regard to the nebulous tests which their Honours held to govern the exercise of the Court's jurisdiction under s. 23 of the Supreme Court Act, it is not surprising that on the same facts their Honours differed as to the result: Gleeson C.J. and Kirby P. were of the opinion that the proceedings before the Tribunal on the appellant's complaints (except in relation to certain financial transactions) should be permanently stayed; Mahoney J.A., not being satisfied that there would be "unacceptable unfairness", would have refused the stay. But does s. 23 create a jurisdiction so wide-ranging as to be contained only by nebulous tests that depend on mere judicial impression of the circumstances?

Section 23 undoubtedly confers jurisdiction on the Supreme Court to supervise the administration of justice by ensuring that courts and some tribunals that perform judicial functions [61] do not exceed their jurisdiction, exercise it when they are bound to do so and exercise it in accordance with the applicable law. The jurisdiction conferred by s. 23 of the Supreme Court Act may extend also to the protection of inferior courts and some tribunals against contempts [62] . Assuming that justice is administered by some tribunals as well as by courts for the purposes of s. 23, the Tribunal's performance of the functions of investigating a complaint and, where it finds a complaint to be proved, imposing disciplinary sanctions under s. 32R of the Act surely falls within the "administration of justice" for the purposes of s. 23 of the Supreme Court Act. The jurisdiction conferred by s. 23 may overlap the jurisdiction conferred by s. 22 to supervise inferior judicial tribunals by making orders in the nature of prerogative writs [63] and, for reasons which will be stated, it extends to the making of stay orders to prevent those tribunals from entertaining proceedings in abuse of process. But, however broadly s. 23 of the Supreme Court Act may be construed, it cannot be construed as authorizing the Supreme Court to countermand a statutory direction to the repository of a power to exercise that power. If the conditions precedent to the operation of the statutory direction contained in s. 32O(1) are satisfied, s. 23 of the Supreme Court Act does not authorize the Supreme Court to prohibit the members of the Tribunal from obeying that direction by investigating a complaint referred to the Tribunal. Section 23 does not transfer to the Supreme Court the function of determining whether the Tribunal should exercise powers under the Act.

1. See the discussion by Mahoney J.A. of the "courts" which undertake the administration of justice in New South Wales Bar Association v Muirhead (1988), 14 NSWL.R., at pp. 206-212. 2. New South Wales Bar Association v Muirhead. 3. See s. 69.

When judicial notions of justice or fairness are offended, there is a tendency, perhaps unconscious, for a court to see its jurisdiction as wide enough to authorize the granting of a remedy. But where a perceived unfairness results from a lawful exercise of power conferred by statute, the mere unfairness does not empower the court to set aside the exercise of the power. A fortiori, if there be a duty to exercise the power. Where power is reposed in an inferior court or in a tribunal, that court or tribunal, not the Supreme Court, determines the manner in which, within its limits, that power is to be exercised. If s. 23 were regarded as conferring on the Supreme Court a power to do more than to ensure that courts and tribunals exercise their respective jurisdictions and powers according to law, the Supreme Court would be required to consider the merits of any decision made by a court or tribunal which is subject to the Supreme Court's supervision. Of course, that Court will scrutinize any statute which purports to authorize an exercise of power resulting in unfairness and will determine whether, on the true construction of the statute, it authorizes such a result. But justice is not judicially administered by the making of orders which, while satisfying abstract notions of justice or fairness, are inconsistent with statutory law. The "administration of justice" of which s. 23 speaks is the administration of justice according to law including, of course, statutory law. I respectfully agree with the observation by Mahoney J.A. as to the scope of s. 23 in New South Wales Bar Association v Muirhead [64] :

Nor do I think that the section gives the court, as it were, the power to put aside the rules of the law and the obligations arising under them and to intervene when an individual judge or a particular court feels that the established rules cause, in the broad sense, injustice in a particular case. What is in question is justice under the law. It is of the nature of a rule or principle that individual cases may arise in which, for reasons other than reasons related to the content of the rule, there is hardship or, in the broad sense, injustice. I do not think that the effect of s. 23 authorizes the courts to put aside the principles of law and, according to the impression of the case upon the individual judge or court, to do what in this sense seems appropriate.

I therefore do not think that s. 23 creates rights or obligations which go in this sense beyond those created by the ordinary principles of law which are relevant in the present case.

Where a statute confers a jurisdiction or power, the Supreme Court must construe the statute in order to exercise its supervisory jurisdiction. If the statute, either expressly or by implication, limits the power or prescribes rules governing its exercise, the Court enforces the limitation or the observance of the rules in obedience to the intention of the legislature. That legislative supremacy is the justification for judicial supervision is clear enough when the limitation or the rules are expressed; it is no less the justification for judicial supervision when a limitation or governing rule is implied. For reasons which I have sufficiently explained elsewhere [65] , I agree with Professor Wade's observation [66] that -

in every case [the judge] must be able to demonstrate that he is carrying out the will of Parliament as expressed in the statute conferring the power. He is on safe ground only where he can show that the offending act is outside the power. The only way in which he can do this, in the absence of an express provision, is by finding an implied term or condition in the Act, violation of which then entails the condemnation of ultra vires. [67] 1. Church of Scientology Inc. v Woodward (1982), 154 C.L.R. 25, at p. 70; F.A.I. Insurances Ltd. v Winneke (1982), 151 C.L.R. 342, at p. 409; Coutts v The Commonwealth (1985), 157 C.L.R. 91, at p. 105; Kioa v West (1985), 159 C.L.R. 550, at pp. 609-611; Attorney-General (NSW) v Quin (1990), 170 C.L.R. 1, at pp. 34-36. 2. Administrative Law, 6th ed. (1988), p. 42. 3. See, to similar effect, Lord Reid's speech in Ridge v Baldwin , [1964] A.C. 40, at p. 73.

If, upon the true construction of the Act, the Tribunal were shown to be exercising or to be intending to exercise a jurisdiction which it does not possess, s. 23 would authorize the making of an order in the nature of a writ of prohibition. Applying the same principle, if the Tribunal were shown to be exercising or to be intending to exercise a jurisdiction which it does possess but which has been invoked for a purpose which is alien to the purpose which that jurisdiction is designed to serve, s. 23 would authorize the Court to make an order staying the proceedings. A stay order in such a case is analogous to a writ of prohibition directed to the repository of an administrative power who is exercising or intending to exercise the power for a purpose alien to the purpose for which the power was conferred.

The second question: has the Tribunal's power been invoked for an impermissible purpose?

Where a statute confers a discretionary power, it is implied - if it is not expressed - that the power be exercised for the purpose for which it was conferred. In Padfield v Minister of Agriculture, Fisheries and Food [68] Lord Reid referred to the manner of ascertaining the purpose for which a power is to be used where no purpose is expressed by the statute:

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. The principle was stated, perhaps too broadly, by Latham C.J. in Arthur Yates & Co. Pty. Ltd. v Vegetable Seeds Committee [69] : If a power is conferred in terms which require it to be used only for a particular purpose, then the use of that power for any other purpose cannot be justified. Thus, in Brownells Ltd. v Ironmongers' Wages Board [70] , where the Wages Board determined penalty rates (a matter which the Board had power to determine) with the purpose of fixing the opening and closing hours of shops (a matter which the Board had no power to regulate), the determination was held to be invalid. Latham C.J. said [71] : where a statute confers powers upon an officer or a statutory body and either by express provision or by reason of the general character of the statute it appears that the powers were intended to be exercised only for a particular purpose, then the exercise of the powers not for such purpose but for some ulterior object will be invalid. Just as an Act conferring a power couched in general terms is construed as conferring the power to be used only in accordance with the objects and policy of the Act, so an Act conferring a jurisdiction on a court or tribunal is construed as conferring the jurisdiction to be invoked only in accordance with the purpose for which the jurisdiction is conferred. Thus in In re Majory, A Debtor; Ex parte The Debtor v F. A. Dumont Ltd. [72] Lord Evershed M.R., speaking for the Court, stated a principle in terms approved by a majority of this Court in Williams v Spautz [73] : court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused. When a party invokes the jurisdiction vested in a court or tribunal for a purpose alien to that which its exercise is intended to serve, it is said that there is an abuse of process. 1. [1968] A.C. 997, at p. 1030. 2. (1945) 72 C.L.R. 37, at pp. 67-68. 3. (1950) 81 C.L.R. 108. 4. ibid., at p. 120. 5. [1955] Ch. 600, at pp. 623-624. 6. (1992) 174 C.L.R. 509, at pp. 526-527, 528.

Although the concept of alien purpose is the basis of both the jurisdiction to prohibit an abuse of administrative power and the jurisdiction to stay proceedings as an abuse of process, the inquiry in the former case is directed to the purpose of the repository of the power and in the latter case is directed to the purpose of the party instituting the relevant proceedings. In the former case, the question is whether the power would be or would have been exercised but for the alien purpose [74] ; in the latter case, the question is whether the alien purpose is the predominant [75] or only substantial [76] purpose of the party who institutes the relevant proceedings. Therefore, where proceedings are instituted by a party for the purpose of oppressing another party, the proceedings may be stayed.

1. Thompson v Randwick Municipal Council (1950), 81 C.L.R. 87, at p. 106. 2. Williams v Spautz (1992), 174 C.L.R., at p. 529. 3. ibid., at p. 537. The difference between the "predominant" and the "only substantial" tests need not be considered in this case because, as I would hold, the purpose of the appellant in making the 1991 complaints is not an alien purpose.

In reference to an abuse of judicial process, the concept of alien purpose has a further significance: it may relate not only to the purpose of the party instituting the proceedings but to the object which the proceedings themselves are apt to achieve. I venture to repeat what I said in Jago v District Court (NSW) [77] :

An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law [78] . And equally, the institution of proceedings which will inevitably and manifestly fail [79] or which unnecessarily duplicate proceedings already pending [80] or determined [81] are incapable of serving a legitimate purpose. They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is to say, a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy. Therefore, in the context of abuse of judicial process, the concept of alien purpose is relevant to two questions: whether the party instituting the proceeding has done so for an alien purpose and whether the proceedings themselves are serving an alien purpose. 1. (1989) 168 C.L.R. 23, at p. 47. 2. Williams v Spautz. 3. Cox v Journeaux [No. 2] (1935), 52 C.L.R. 713; Dey v Victorian Railways Commissioners (1949), 78 C.L.R. 62, at pp. 84, 91-92; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964), 112 C.L.R. 125. 4. McHenry v Lewis (1882), 22 Ch. D. 397; Williams v Hunt , [1905] 1 K.B. 512. 5. Connelly v Director of Public Prosecutions , [1964] A.C. 1254, at pp. 1361-1362.

The purpose of the proceedings taken on the 1991 complaints was considered by the Chief Justice in the Court of Appeal who observed that [82] "the facts about Chelmsford have been ventilated in a protracted Royal Commission. It is difficult to avoid the conclusion that the character of the new proceedings is punitive rather than protective." With respect, I do not see anything to suggest that the purpose of making the 1991 complaints was other than to seek their investigation by the Tribunal which alone had power to determine whether, if the facts alleged in the complaints were found proved, the medical practitioner had been guilty of professional misconduct warranting the imposition of a disciplinary penalty under s. 32R. The Tribunal proceedings could result in the imposition of a disciplinary penalty but that does not mean that they are serving an alien purpose.

The professional misconduct alleged against the respondents is serious and extensive; it relates to the treatment of a number of patients suffering or supposedly suffering psychiatric illness. The complaints were made after and, it may fairly be assumed, in consequence of the evidence given to and findings made by a Royal Commission. The jurisdiction of the Tribunal exists in order that patients be protected and that the public know that patients are protected against, inter alia, professional misconduct. The protection is afforded by the statutory powers of the Tribunal which enable the Tribunal publicly to declare that professional misconduct has been proved and to impose on a medical practitioner an appropriate disciplinary penalty. Those powers are designed not only to do a measure of justice as between a medical practitioner and his or her patient or to impose an appropriate penalty for professional misconduct but also to declare and enforce proper professional standards.

The making of the 1991 complaints was not only for a purpose within the policy and objects of the Act; it was for a purpose at the heart of the policy and objects of Pt 3A - Complaints and Disciplinary Proceedings. Indeed, after the findings of the Royal Commission, it would have been surprising if the Secretary or his delegate had not made a complaint against a medical practitioner where credible evidence adduced before the Commission and available to be tendered before the Tribunal revealed conduct by that practitioner which, in the opinion of the Secretary or his delegate, amounted to substantial professional misconduct. I find no evidence that the appellant made the 1991 complaints for any purpose alien to the purposes to be collected from an examination of the terms of the Act [83] .

1. It is therefore unnecessary to consider whether, if the Medical Board under s. 31 of the Act or the Secretary of the Department of Health under s. 32 of the Act acting in good faith referred to the Tribunal a complaint made for an alien purpose, there would be an abuse of the Tribunal's process.

The third question: may process be abused when proceedings are instituted for a legitimate purpose but result in oppression and unfairness?

In a passage in the joint judgment in Williams v Spautz [84] , Mason C.J., Dawson, Toohey and McHugh JJ. said:

The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair" [85] . This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose. (Emphasis added.) Two points of present relevance emerge from this passage. 1. (1992) 174 C.L.R., at pp. 518-519. 2. Barton v The Queen (1980), 147 C.L.R. 75, at pp. 95-96; Jago (1989), 168 C.L.R., at p. 46; see also Reg. v Derby Crown Court; Ex parte Brooks (1984), 80 Cr. App. R. 164, at pp. 168-169.

First, an abuse of process in the extended sense is said to arise from the way in which proceedings are prosecuted. An abuse of process is not established merely by showing that the regular prosecution of proceedings for the purpose of obtaining the relief which the proceedings are designed to afford imposes a burden on the person against whom the proceedings are brought. There must be some manipulation of the prosecution of the proceedings which imposes some exceptional burden additional to the burden necessarily imposed on a party who is properly subjected to litigation. Thus, in Webb v Adkins [1] , where a plaintiff claiming as an executor sued without first obtaining a grant of probate and thereby cast on the defendant "the burthen of contesting [the plaintiff's] title in the dark" [2] , the action was stayed until a grant of probate was obtained, Jervis C.J. remarking [3] :

I think the court has a general superintending power to prevent its process from being used for the purpose of oppression and injustice. No such oppression would attach to the hearing and determination of the 1991 complaints. 1. (1854) 14 C.B. 401 [139 E.R. 165]. 2. ibid., at p. 407 [p. 168], per Maule J. 3. ibid., at p. 407 [pp. 167-168].

The second observation to make about the passage cited from Williams v Spautz is that the "oppression" must result in an unfair trial. In the present case, the extended sense of abuse of process does not advance the respondents' case for Gleeson C.J. was not persuaded that the delay in making the complaints, though putting the respondents "at a significant disadvantage in defending themselves", was such as to prevent a fair hearing before the Tribunal of the complaints now made against the respondents [4] . Kirby P. was prepared with reservations to assume, without deciding, that the Tribunal could fashion its procedures to ensure a fair hearing of the 1991 complaints [5] . And Mahoney J.A. was not satisfied that there would be "unacceptable unfairness" [6] . In the light of those views, it is impossible to conclude that there would be an unfair "trial" of the proceedings before the Tribunal, whatever "oppression" might be occasioned to the respondents by the prosecution of those proceedings.

1. (1991) 25 NSWL.R., at p. 200. 2. ibid., at pp. 205-206. 3. ibid., at p. 222.

The question is therefore reduced to this: is there an "abuse of process" consisting in "oppression" arising from the lapse of time between the administration of the treatment of the Chelmsford patients alleged in the 1991 complaints and the making of those complaints? The reasons for judgment of the majority answer this question by a subjective balancing of a variety of factors - some favouring the continuance of the proceedings (notably the protection of the interests of the public and the patients), others favouring a discontinuance. The balancing approach reflects some of the views expressed in Jago [7] . That approach calls for the critical question to be restated so as to identify more clearly the issue for decision in this case: can an order staying proceedings for abuse of process be made when a court of competent jurisdiction forms the view that, on balance, it is unfairly and unjustifiably oppressive on a party against whom the proceedings are pending to allow those proceedings to continue, even though the proceedings can be fairly tried? I would answer that question: no. As my answer is a minority view in this case, I should briefly state my reasons.

1. (1989) 168 C.L.R., at pp. 31-32, per Mason C.J.; pp. 60-61, per Deane J.; pp. 75-76, per Gaudron J.

The basic principle was stated by this Court in R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [8] . Where a jurisdiction is conferred on a court, "and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter: R. v Tithe Commissioners for England and Wales (In the Matter of Great Hale Tithes) [9] ; Julius v The Right Rev. The Lord Bishop of Oxford [10] ". Therefore, when proceedings are regularly instituted in a court or tribunal vested with such a jurisdiction and the proceedings can be and are prosecuted in due compliance with the court's procedure for the purpose of obtaining relief within the scope of the remedy, the court or tribunal in which the proceedings are pending is duty bound to exercise its jurisdiction to hear and determine those proceedings. In Cox v Journeaux [No. 2] [11] Dixon J. said:

The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. Injustice is "unnecessary" when it is a burden other than and additional to the burden necessarily borne by a party to litigation properly instituted and conducted. The rule of law depends on the certain performance by the court or tribunal of its duty to exercise its jurisdiction. To admit a power in the court or tribunal to decline to exercise its jurisdiction in a case instituted on reasonable grounds for a proper purpose is to assert a power to elevate abstract notions of unfairness or want of justification above the law itself. The administration of justice is not contingent on judicial satisfaction that the prosecution of a proceeding is not unfair and not unjustifiable - provided the proceeding is instituted on reasonable grounds for a proper purpose and is prosecuted in due compliance with the court's procedure. Justice is administered according to law, and the exercise by courts and tribunals of their respective jurisdictions for the purposes for which they are conferred is the administration of justice. Section 23 of the Supreme Court Act does not alter or authorize the Supreme Court to alter that meaning of "the administration of justice" whenever it is of the opinion that justice, viewed in the abstract, might be better administered without regard to the governing law or that the regular prosecution of particular proceedings for a legitimate purpose is "unfair" or "unjustified". Those are terms which, in the context of the law relating to abuse of process, import no more definite criterion than idiosyncratic opinion. I would use the words of Dixon J. [12] to stress that it is important "to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose". 1. (1949) 78 C.L.R. 389, at p. 398; see also Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987), 61 A.L.J.R. 393, at p. 399, per Deane J.; 72 A.L.R. 1, at p. 12. 2. (1849) 14 Q.B. 459 [117 E.R. 179]. 3. (1880) 5 App. Cas. 214. 4. (1935) 52 C.L.R., at p. 720. 5. In Dey v Victorian Railways Commissioners (1949), 78 C.L.R., at p. 92.

In their submissions to this Court, the respondents submitted that the Supreme Court had jurisdiction to stay proceedings before the Tribunal for a so-called "abuse of process" consisting in the institution and maintenance of proceedings resulting in oppression "of such a kind as to be inconsistent with or alien to the purposes of the administration of justice". The submission was expanded by this proposition: "It will be so inconsistent with or alien to those purposes where the nature of the oppression is such as to enliven concern that public confidence in the administration of justice may be eroded." If it be possible to imagine that public confidence in the administration of justice could be eroded by the operation of law, it would be no function of the courts to restore confidence by refraining from applying the law.

The traditional view with respect to the scope of abuse of process has been described as "narrower" than the scope of abuse of process endorsed by some of the judgments in Jago [13] . I adopt the narrower view not only because it is traditional but because it denies to judges and to other repositories of jurisdiction conferred for the public benefit (that being the character of the jurisdiction conferred on the Tribunal by Pt 3A of the Act) any discretion to refuse to do justice according to law. It is the very absence of that discretion which maintains the rule of law and the authority of courts and of judicial tribunals to administer the law.

Take the present case. In the Court of Appeal, as in Herron v McGregor , their Honours focused their attention on the effect of delay on the position of the medical practitioners against whom the complaints had been made. Their Honours gave less weight to the interests of the public and of the Chelmsford patients listed in the 1991 complaints in having the professional conduct of the respondents investigated by the competent disciplinary Tribunal and, if the conduct were proved to have amounted to professional misconduct, in having that conduct publicly stigmatized as such. When the very purpose of conferring jurisdiction on the Tribunal is to protect the public and particular patients against professional misconduct, it is a curious power which allows the pursuit of that purpose to be aborted in order to protect the interests of medical practitioners who are alleged to have grievously mistreated their patients. To patients who might still be suffering from the consequences of the alleged professional misconduct, it might appear to be an odd sort of justice that protects the medical practitioner against the disciplinary power after a lapse of time without relieving the patient of his or her continued suffering.

Of course, there can be two views about whether the inordinate amount of time that has been allowed to pass since the alleged professional misconduct occurred should preclude disciplinary proceedings on the 1991 complaints. One view is that disciplinary proceedings before the Tribunal would place unfair or unjustifiable burdens and strains on the respondent medical practitioners and that the public benefit of upholding and enforcing proper standards of medical treatment is bought at too high a price for the individual respondents; the other view is that the interests of the public and the affected patients are paramount and that their interests in having complaints investigated by the Tribunal have been disregarded for too long. But how can a judicial (as distinct from a political or administrative) choice be made between these two views? Both views are reasonable. There is no legal criterion for upholding the validity of one view and dismissing the validity of the other. There is no legal warrant for favouring the former view by characterizing the latter view as involving an abuse of the Tribunal's process. In my respectful opinion, there was no sound basis for interference by the Supreme Court with the performance by the members of the Tribunal of their statutory duty, namely, the duty to investigate the complaints pursuant to s. 32O(1) and, if the complaints were proved, to exercise the powers conferred by s. 32R.

It follows that, in my opinion, the stay order in this case was erroneous in principle, as were the stay orders in Herron v McGregor . The refusal of special leave to appeal to this Court from the decision in Herron v McGregor does not affect that conclusion. Although a refusal of special leave to appeal to this Court on the ground that the judgment is correct strengthens the persuasive effect of the judgment in other courts, a refusal of special leave to appeal does not affect the legal consequences of the judgment [14] .

1. See Attorney-General (Cth) v Finch [No. 1] (1984), 155 C.L.R. 102, at p. 106; Attorney-General (Cth) v Finch [No. 2] (1984), 155 C.L.R. 107, at p. 115.

The decision in Herron v McGregor was influenced by the proposition that a person charged with an offence (including a disciplinary offence) has a right to a speedy trial [1] . That proposition has now been held to be erroneous [2] . However, McHugh J.A., speaking for the Court, held that an "abuse of process" can be established by "inordinate and inexcusable delay" causing prejudice [3] or oppression [4] or by the institution and continuation of proceedings after a delay that is "so unfair and oppressive that the proceedings are an abuse of the right to lodge a complaint" [5] or by delay which makes the prosecution of a complaint "harsh and oppressive" [6] . His Honour evaluated the "oppression" which Dr. Herron would have suffered by a prosecution of the 1986 complaints by reference, inter alia, to Dr. Herron's likely reactions to subjection to disciplinary proceedings [7] . For the reasons I have stated, I would not hold these to be appropriate tests for determining whether the making of a complaint or the prosecution of proceedings on a complaint is an abuse of the Tribunal's process.

1. (1986) 6 NSWL.R., at pp. 252-253. 2. Jago v District Court (NSW) 3. Herron v McGregor (1986), 6 NSWL.R., at pp. 253, 255, 256. 4. ibid., at p. 256. 5. (1986) 6 NSWL.R., at pp. 258, 260, 269, 271. 6. ibid., at p. 268. 7. ibid., at pp. 256-257.

However, whether it was right or wrong to hold that the Department's delay in making the 1986 complaints was sufficient in the circumstances relating to those complaints to render their prosecution an abuse of the Tribunal's process, a longer delay in making the 1991 complaints would, if there were no other change in circumstances, demand the conclusion that their prosecution would be an abuse of process. This seems to have been the chief consideration inducing Gleeson C.J. and Kirby P. to make the stay orders in the present case [8] , although neither of their Honours held that there was an issue estoppel.

1. See (1991) 25 NSWL.R., at p. 202, per Gleeson C.J.; p. 207, per Kirby P.

In my opinion, the judgment in Herron v McGregor does not found an estoppel establishing that the prosecution of the 1991 complaints would be an abuse of process. If the relevant "principle" be that abuse of process is ascertained by a subjective balancing of a variety of factors, there can be no estoppel unless the relevant factors remain the same [9] . The decision in Herron v McGregor was made upon detailed consideration of the circumstances relating to each of the several complaints then pending against Dr. Herron or Dr. Gill. The 1991 complaints are not only different from the 1986 complaints; the circumstances in which the 1991 complaints were made are materially different. The Royal Commission apparently revealed the extent and gravity of the D.S.T. and E.C.T. treatment of patients at Chelmsford. Further weight was added to the interests of the public and of affected patients in having allegations of professional misconduct investigated by the Tribunal despite - or, to put the converse viewpoint, because of - the failure of the Department of Health to take timely action to uphold appropriate standards of medical practice and thereby protect patients and the public interest. If, contrary to my opinion, an abuse of process can be established by a balancing process between the interests of the public and patients on the one hand and the interests of the medical practitioners on the other, the difference in circumstances attendant on the making of the 1986 complaints and the 1991 complaints precludes the arising of an issue estoppel in the present case.

1. The question here is not the same as the question whether an estoppel may arise from a decision on the merits of a complaint made by a disciplinary tribunal: cf. Law Society (NSW) v Weaver , [1977] 1 NSWL.R. 67; (1979) 142 C.L.R. 201.

Herron v McGregor was correct, in my opinion, in so far as it decided that the Supreme Court had jurisdiction under s. 23 to stay the prosecution of complaints before the Tribunal when the prosecution would be an abuse of the Tribunal's process [10] , but it was in error in extending the notion of abuse of the Tribunal's process beyond the traditional, "narrower", view. Absent an issue estoppel, the decision in Herron v McGregor presents no obstacle to the prosecution of the 1991 complaints. Proceeding on what I would take to be an erroneous notion of abuse of process, it lacks precedential authority. To follow Herron v McGregor in this case would achieve consistency in decision-making, but only by reasserting a power over the exercise of the Tribunal's jurisdiction which the Supreme Court does not possess.

If the balancing process were legally correct, I would be unable to find a legitimate basis for reviewing the decision of the Court of Appeal: that Court's subjective evaluation of the circumstances, if reasonable, could not be set aside merely because this Court formed subjectively a different evaluation. But I depart from the approach of the Court of Appeal on the ground that, neither in Herron v McGregor nor in the present case, did s. 23 authorize that Court to stay proceedings on the ground that the prosecution of the proceedings was, on balance and as a matter of subjective evaluation, "oppressive".

One further point should be mentioned. Kirby P. favoured the making of a stay order because, inter alia, he regarded the proceedings on the 1991 complaints as "a species of double jeopardy" [11] . In criminal proceedings, the general rule that there should be finality in litigation takes the form of a rule against double jeopardy [12] . In this case, however, the respondents, far from having been put in jeopardy twice, have never been put in jeopardy at all: all disciplinary proceedings have been stayed. As Dixon J. pointed out in Broome v Chenoweth [13] , the rule against double jeopardy requires for its application a judgment or order in favour of the person in jeopardy which, if not amounting to a discharge or acquittal, at least implies "a failure upon the part of the prosecution to make out the charge or some ingredient therein or even a preliminary condition legally indispensible to a conviction, that is if the condition is of a kind that cannot be fulfilled after the failure of the earlier charge and before the laying of the later charge" [14] In this case, the respondents have never been put in jeopardy of having a finding made on any of the disciplinary charges alleged against them. Kirby P. cited with approval a passage from the opinion of Black J. in Green v United States [15] , but the rule in the United States is broader than the Anglo-Australian rule [16] . Even so, the United States rule would not extend to the present case: in Green the jeopardy in which an accused had first been put was the jeopardy of conviction by a jury that was discharged without having taken the "full opportunity" which it had to return a verdict [17] . In the present case, the Tribunal has never been given an opportunity to investigate any of the complaints made against the respondents.

1. (1991) 25 NSWL.R., at pp. 206-207. 2. Mills v Cooper , [1967] 2 Q.B. 459, at p. 469, per Diplock L.J. 3. (1946) 73 C.L.R. 583, at p. 599. 4. And see Reg. v Dabhade , [1993] Q.B. 329. 5. (1957) 355 U.S. 184, at pp. 187-188. 6. See Friedland, Double Jeopardy (1969), pp. 26-28. 7. (1957) 355 U.S., at p. 191.

I would allow the appeal and, in lieu of the orders made by the Court of Appeal, I would dismiss the respondents' applications for a stay of the proceedings before the Medical Tribunal.

I would allow the appeal in each case and dismiss each respondent's application for a permanent stay of proceedings before the Medical Tribunal. I would do so generally for the reasons appearing in the judgment of Brennan J.

I agree with Brennan J. that "it is not possible to determine the legal correctness of the order made by the Court of Appeal without ascertaining the nature of the jurisdiction in exercise of which that order was purportedly made". If it were necessary, I would give the appellant leave to amend the notices of appeal to allow the nature of that jurisdiction to be examined fully.

In accordance with the provisions of the Medical Practitioners Act 1938 NSW ("the Act"), the Medical Tribunal was required to conduct an inquiry into the appellant's complaints against the respondents which had been referred to it by the New South Wales Medical Board. The jurisdiction of the Court of Appeal to stay proceedings before the Tribunal was said to derive from s. 23 of the Supreme Court Act 1970 NSW which reposes in the Supreme Court "all jurisdiction which may be necessary for the administration of justice in New South Wales". Section 23 undoubtedly confers upon the Supreme Court and therefore upon the Court of Appeal [18] a supervisory jurisdiction in respect of proceedings before a body such as the Tribunal. But I agree with Brennan J. that this supervisory jurisdiction (to be contrasted with the appellate jurisdiction which may be invoked where the Tribunal has found a complaint proved and imposed a disciplinary sanction [19] ) is confined to ensuring that the Tribunal acts within its jurisdiction and powers, that the jurisdiction which it does possess has not been invoked for an impermissible purpose and that its process is not being abused in such a way as to result in oppression and unfairness to those whose conduct is the subject of its inquiry.

1. Supreme Court Act, s. 44. 2. See the Act, s. 32U.

The respondents did not contend that, in inquiring into the complaints against them, the Tribunal was acting beyond jurisdiction or power. Williams v Spautz [20] held that to bring proceedings to achieve objects ulterior to the purpose of a cause of action as pleaded is an abuse of process for which a permanent stay should be granted. Mason C.J., Dawson, Toohey and McHugh JJ. said [21] :

The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair". 1. (1992) 174 C.L.R. 509. 2. ibid., at p. 518.

Where a stay of proceedings is sought on the ground that the proceedings have been instituted and maintained for an improper purpose, "it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped" [22] . But here the respondents make no allegation of improper purpose on the part of the appellant. Therefore, the inquiry which the Tribunal has been directed by statute to conduct may not be stayed unless the respondents are so oppressed as to face the likelihood of an unfair trial. But that likelihood is precluded by the judgments of the members of the Court of Appeal who held or were prepared to assume that a fair trial was possible. In the absence of any finding that a fair trial was not possible, a stay of proceedings was not warranted on the ground merely that the proceedings were "oppressive" [23] .

1. ibid., at p. 519. 2. See Gill v Walton (1991), 25 NSWL.R. 190, at p. 201, per Gleeson C.J.; p. 205, per Kirby P., where that expression is used.

It is conceivable that delay in proceedings may be of such an order as to make a fair trial impossible; the discussion in Jago v District Court (NSW) [24] makes this clear. In that event the oppression results in an inability to obtain a fair trial. But that is not the case here. In Jago I suggested [25] :

To treat abuse of process and fair trial as entirely distinct concepts causes the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other. However, in the present case abuse of process in the sense of improper purpose is not asserted nor is the impossibility of securing a fair trial. A permanent stay of the proceedings against the respondents is therefore not justified. 1. (1989) 168 C.L.R. 23. 2. ibid., at p. 72.

I agree with Brennan J.'s reasons for concluding that no question of double jeopardy arises here.